Published 4:00 am, Thursday, October 14, 2004

Photo: MARK COSTANTINI

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pot_0098.JPG Photo taken on 12/17/03 in oakland.
(From left) Palintiffs Diane Monson, 46, Oroville(center) and Angel McClary Raich, 38, Oakland listen to Robert A. Raich, lead attorny and Angel's husband speak at press conference. Press conference at the Elihu M. Harris State Office Building in Oakland regarding the Ninth Circuit Court of Appeals' ruling that federal interference of the use of medical cannabis is unconstitutional.
CHRONICLE PHOTO BY MARK COSTANTINI MANDATORY CREDIT FOR PHOTOG AND SF CHRONICLE/ -MAGS OUT Metro#Metro#Chronicle#10/14/2004#ALL#5star#a5#0421533641 less

California Attorney General Bill Lockyer sided with two medical marijuana patients Wednesday in their U.S. Supreme Court battle with the Bush administration, arguing that patients who use locally grown marijuana in states that allow it should be protected from federal drug enforcement.

"The federal government has limited authority to interfere with state legislation enacted for the protection of citizen health, safety and welfare, " Lockyer's office said in papers filed with the court on behalf of California, Maryland and Washington, three of the 11 states with medical marijuana laws.

His brief noted that the 1970 Controlled Substances Act, which classified marijuana as a dangerous drug with "no currently accepted medical use," was passed long before the AIDS epidemic and before large numbers of doctors began recommending pot to counter the effects of therapy for AIDS and cancer.

Interstate commerce

In light of those developments, the federal ban on marijuana possession should not be interpreted to apply to the state-regulated medicinal use of a drug that is obtained within a state, said Taylor Carey, a special assistant attorney general who wrote Lockyer's brief. Otherwise, Carey argued, enforcement of the law would exceed Congress' constitutional power to regulate interstate commerce.

The court is scheduled to hear arguments Nov. 29 on whether federal authorities can prosecute patients and their caregivers and confiscate their marijuana. The plaintiffs are Angel Raich of Oakland, who suffers from a brain tumor and a wasting disorder, and Diane Monson of Oroville (Butte County), who has severe back pain and muscle spasms.

Both women have doctors' recommendations to use marijuana for their conditions, as required by Proposition 215, a ballot initiative passed by California voters in 1996. Raich's marijuana is provided by her caregivers, and Monson was growing her own until federal agents seized her six plants.

A federal appeals court ruled in December that their use of marijuana was not part of interstate commerce and was therefore exempt from the federal law, a decision that a federal judge later applied to a Santa Cruz cooperative that supplied marijuana to its members. But in June, the U.S. Supreme Court, to the dismay of medical marijuana advocates, granted a request by the Bush administration to review the case. A ruling is due by the end of June.

No medicinal value

In the government's most recent court filing, Justice Department lawyers said courts should defer to congressional findings that all marijuana use affects interstate commerce and that the drug has no medicinal value.

"Local manufacture, distribution, and use of controlled substances -- and their possession for those purposes -- directly increase the supply of those substances, which in turn increases demand," government lawyers wrote. "Neither the purported medical use of marijuana nor the role of a physician in approving it provides the slightest basis for excluding it from the comprehensive coverage" of the federal law.

In filings Wednesday, Raich and Monson drew support from an unlikely source -- the states of Alabama, Louisiana and Mississippi, which take a hard line on drugs and punish first-time marijuana users with prison sentences as long as 10 years.

"This is not a case about drug-control policy or (patients') fundamental rights," said lawyers from the Alabama attorney general's office. "The point is that, as a sovereign member of the federal union, California is entitled to make for itself the tough policy choices that affect its citizens."

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